Citation Nr: 0508274
Decision Date: 03/21/05 Archive Date: 03/30/05
DOCKET NO. 04-07 471 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma
THE ISSUE
Entitlement to compensation benefits under 38 U.S.C.A. § 1151
(West 2002) for a jaw disability, including temporomandibular
joint dysfunction, as a result of surgery performed at a
Department of Veterans Affairs Medical Center in July 1999.
REPRESENTATION
Appellant represented by: Oklahoma Department on
Veterans Affairs
WITNESSES AT HEARING ON APPEAL
The veteran and his spouse
ATTORNEY FOR THE BOARD
S. J. Janec, Counsel
INTRODUCTION
The veteran had active military service from August 1975 to
August 1979, and from October 1981 to October 1984.
This matter comes before the Board of Veterans' Appeals
(Board) from a May 2003 rating decision of the Muskogee,
Oklahoma, Regional Office (RO) of the Department of Veterans
Affairs (VA) that denied compensation benefits under
38 U.S.C.A. § 1151 (West 2002) for a jaw disability,
including temporomandibular joint dysfunction, as a result of
surgery performed at a VA Medical Center (VAMC) in July 1999.
In November 2004, the veteran testified at a videoconference
hearing before the undersigned Veterans Law Judge.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, D.C. VA will notify you if
further action is required on your part.
REMAND
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A.
§§ 5102, 5103, 5103A, 5107 (West 2002)) became law in
November 2000. This law redefined the obligations of VA with
respect to the duty to assist and included an enhanced duty
to notify a claimant as to the information and evidence
necessary to substantiate a claim for VA benefits. Proper
notice has been deemed mandatory by the Court of Appeals for
Veterans Claims (Court). Quartuccio v. Principi, 16 Vet.
App. 183, 187 (2002).
A review of the file reveals that the veteran has not been
provided adequate notification as required by the VCAA.
Specifically, in the March 2002 letter sent to the veteran,
he was not advised of the information and evidence necessary
to substantiate his claim for benefits pursuant to
38 U.S.C.A. § 1151 (West 2002). Rather, the letter described
the evidence required to establish service connection for a
disability based on direct incurrence or aggravation in
service. Since the standards are notably different, the
Board finds that a remand is appropriate in order to correct
this procedural error.
The Departments of Veterans Affairs and Housing and Urban
Development, and Independent Agencies Appropriations Act,
1997 (Act), Pub. L. No. 104-204, 110 Stat. 2926 (1996),
amended 38 U.S.C. § 1151 with regard to what constitutes a
"qualifying additional disability" susceptible of
compensation. The amendment requires a showing not only that
VA treatment in question resulted in additional disability,
but also that the proximate cause of the additional
disability was carelessness, negligence, lack of proper
skill, error in judgment, or similar instance of fault on
VA's part in furnishing the medical or surgical treatment, or
that the proximate cause of additional disability was an
event which was not reasonably foreseeable. See 38 U.S.C.A.
§ 1151 (West 2002). The Act specified that the amendments to
38 U.S.C. § 1151 were effective for appeals filed after
October 1, 1997. See also, VAOPGCPREC 40-97. The veteran
filed his claim for benefits in December 2001. Therefore,
the amended version of 38 U.S.C.A. § 1151 is applicable.
In July 1999, the veteran underwent surgery at a VAMC to
remove a right trigeminal schwannoma. Subsequently, he
complained of jaw pain and VA outpatient treatment reports
dated after the surgery indicate findings consistent with
decreased sensory response in the right cheek, mild atrophy
of the right tongue, and a malpositioned mandible with
restricted mandible movement. A diagnosis of
temporomandibular joint dysfunction was questioned.
In April 2003, the veteran's file was referred to a dentist
for an opinion. He noted that access to the schwannoma in
the right temporal region necessitated involvement of the
temporal bones, zygomatic arch, and mandibular
temporomandibular joint region. It was further stated that
temporomandibular joint pain was a known risk and
complication of cranial base access surgery. However, the
reporting dentist did not specifically discuss all
abnormalities that had been noted in VA outpatient treatment
reports, such as the malpositioned mandible or restricted
mandible movement, but only referenced the veteran's
complaints of pain in the temporomandibular joint. Moreover,
he did not discuss the standard of care, or indicate whether
any of the residuals the veteran sustained from the surgery
resulted from carelessness, negligence, lack of proper skill,
error in judgment, or similar instance of fault on VA's part,
or an event not reasonably foreseeable.
As such, the Board finds that, consistent with the duty to
assist the veteran in the development of his claim,
additional development is required because the current
evidence is insufficient upon which to make a decision.
Accordingly, another examination and opinion are necessary.
See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).
Accordingly, this appeal is REMANDED for the following
development:
1. Send the veteran a letter to inform
him of the information and evidence
required to substantiate his claim for
benefits under 38 U.S.C. § 1151 (West
2002), and advise him of the division of
responsibilities between him and VA in
obtaining such evidence, in accordance
with Quartuccio v. Principi, 16 Vet. App.
183 (2002); 38 U.S.C.A. §§ 5102, 5103,
and 5103A (West 2002); 38 C.F.R. § 3.159
(2004), and any other applicable legal
precedent. The veteran should also be
advised to send any additional evidence
pertinent to the appeal to VA.
2. The veteran should be scheduled for a
VA dental examination to ascertain
whether he has any chronic residual
disabilities of the jaw, including
temporomandibular joint dysfunction, as a
result of the surgery that was performed
at a VA facility in July 1999. The
claims folder should be made available to
the examiner. After a thorough
examination and a review of the claims
file, the examiner should state whether
any of the jaw residuals found on
examination resulted from carelessness,
negligence, lack of proper skill, error
in judgment, or similar instance of fault
on VA's part, or an event not reasonably
foreseeable.
3. Upon completion of the above, and any
development as may be subsequently
indicated by any response received from
the veteran, the claim for entitlement to
compensation benefits under 38 U.S.C.A. §
1151 (West 2002) for a jaw disability,
including temporomandibular joint
dysfunction, as a result of surgery at a
VAMC in July 1999 should be
readjudicated. If the determination
remains adverse to the veteran, he and
his representative should be furnished a
supplemental statement of the case and be
afforded the applicable time to respond.
Thereafter, the case should be returned to the Board, if in
order. The veteran need take no action until otherwise
notified; however, he has the right to submit additional
evidence and argument on the matter the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by
the United States Court of Appeals for Veterans Claims for
additional development or other appropriate action must be
handled in an expeditious manner. See The Veterans Benefits
Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat.
2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112).
_________________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2004).